[Federal Register Volume 61, Number 196 (Tuesday, October 8, 1996)]
[Rules and Regulations]
[Pages 52691-52694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25722]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-033-FOR]


North Dakota Abandoned Mine Land Reclamation Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is 
approving a proposed amendment to the North Dakota abandoned mine land 
reclamation (AMLR) plan (hereinafter, the ``North Dakota plan'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). North 
Dakota proposed revisions to and the addition of provisions pertaining 
to contractor eligibility, procurement procedures, contract procedures, 
contract and procurement policies, and the State agency structural 
organization. The amendment was intended to revise the North Dakota 
plan to meet the requirements of the corresponding Federal regulations 
and be consistent with SMCRA, and to improve operational efficiency.

EFFECTIVE DATE: October 8, 1996.

FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Telephone: (307)
261-6550, Internet address:
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the North Dakota Plan

    On December 23, 1981, the Secretary of the Interior approved the 
North Dakota plan. General background information on the North Dakota 
plan, including the Secretary's findings and the disposition of 
comments, can be found in the December 23, 1981, Federal Register (46 
FR 62253). Subsequent actions concerning North Dakota's plan and plan 
amendments can be found at 934.25.

II. Proposed Amendment

    By letter dated September 20, 1995, North Dakota submitted a 
proposed amendment to its plan (administrative record No. ND-X-02) 
pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota submitted the 
proposed amendment in response to a September 26, 1994, letter 
(administrative record No. ND-X-01) that OSM sent to North Dakota in 
accordance with 30 CFR 884.15(b), and at its own initiative. The 
provisions of the North Dakota plan that North Dakota proposed to 
revise or add were: North Dakota Century Code (NDCC) 38-14.2-03(14), 
bidder eligibility for abandoned mine land (AML) contracts; procurement 
procedures; contract procedures; contract and procurement policies 2-
02-81(5) and 2-01-81(5); and the North Dakota Public Service Commission 
(PSC) organizational chart.
    OSM announced receipt of the proposed amendment in the October 16, 
1995, Federal Register (60 FR 53564), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. ND-X-05). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on November 15, 1995.
    During its review of the amendment, OSM identified concerns 
relating to the provisions at NDCC 38-14.2-03(14), bidder eligibility, 
and section IV.C.5 of the North Dakota PSC procurement procedures, non-
competitive negotiation. OSM notified North Dakota of the concerns by 
letter dated December 7, 1995 (administrative record No. ND-X-04). 
North Dakota responded in a letter dated April 30, 1996, by submitting 
additional explanatory information (administrative record No. ND-X-09). 
North Dakota proposed additional explanatory information for NDCC 38-
14.2-03(14), contractor responsibility, and procurement procedure 
section IV.C.5., sole-source procurement.
    Based upon the additional explanatory information for the proposed 
plan amendment submitted by North Dakota, OSM reopened the public 
comment period in the May 21, 1996, Federal Register (61 FR 25425, 
administrative record No. ND-X-18). Because no one requested a public 
hearing or meeting, none was held. The public comment period closed on 
June 20, 1996.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 884.14 and 884.15, finds that the proposed plan amendment submitted 
by North Dakota on September 20, 1995, and as supplemented with 
additional explanatory information on April 30, 1996, meets the 
requirements of the corresponding Federal regulations and is consistent 
with SMCRA. Thus, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to North Dakota's Plan Provisions

    North Dakota proposed revisions to the following previously-
approved plan provisions that are nonsubstantive in nature and consist 
of minor editorial and recodification changes (corresponding Federal 
regulation provisions are listed in parentheses):

North Dakota PSC Procurement Procedures (30 CFR 884.13(d)(3)), title 
and table of contents, and
North Dakota PSC Contract Procedures (30 CFR 884.13(d)(3)), title and 
table of contents.

    Because the proposed revisions to these previously-approved plan 
provisions are nonsubstantive in nature, the Director finds that they 
meet the requirements of the Federal regulations. The Director approves 
the proposed revisions to these plan provisions.

2. NDCC 38-14.2-03(14), Bidder Eligibility for Abandoned Mine Land 
Contracts

    North Dakota proposed to add NDCC 38-14.2-03(14) to require that:

    Every successful bidder for an AML contract must be eligible 
based on available information concerning Federal and State failure-
to-abate cessation orders, unabated Federal and State imminent harm 
cessation

[[Page 52692]]

orders, delinquent civil penalties issued pursuant to Section 518 of 
the Surface Mining Control and Reclamation Act of 1977, bond 
forfeitures where violations upon which the forfeitures were based 
have not been corrected, delinquent abandoned mine reclamation fees, 
and unabated violations of Federal an State laws, rules, and 
regulations pertaining to air or water environmental protection 
incurred in connection with any surface coal mining operation.

    The Federal regulations at 30 CFR 874.16 for coal and 875.20 for 
noncoal provide that to receive AML funds, every successful bidder for 
an AMI contract must be eligible under 30 CFR 773.15(b)(1) at the time 
of contract award to receive a permit or conditional permit to conduct 
surface coal mining operations and that bidder eligibility must be 
confirmed by OSM's automated Applicant/Violator System for each 
contract to be awarded.
    At NDCC 38-14.2-03(14), North Dakota proposed clearance criteria 
that must be met before an AML contract may awarded to a successful 
bidder for a contract; however, North Dakota's proposed statute lacks 
the specific criteria of the Federal regulations concerning 
eligibility.
    North Dakota proposed that ``[e]very successful bidder for an AML 
contract must be eligible based on available information * * *.'' North 
Dakota's use of the phrase ``must be eligible'' does not indicate what 
the successful bidder must be eligible for. The Federal regulations at 
30 CFR 874.16 and 875.20 require that every successful bidder for an 
AML contract must be eligible under 30 CFR 773.15(b)(1) at the time of 
contract award to receive a permit or conditional permit to conduct 
surface coal mining operations.
    Secondly, North Dakota proposed that ``the successful bidder for an 
AML contract must be eligible based on available information concerning 
Federal and State failure-to-abate cessation orders, unabated Federal 
and State imminent harm cessation orders, delinquent civil penalties 
issued pursuant to Section 518 of the Surface Mining Control and 
Reclamation Act of 1977, bond forfeitures where violations upon which 
the forfeitures were based have not been corrected, delinquent 
abandoned mine reclamation fees, and unabated violations of Federal and 
State laws, rules, and regulations pertaining to air or water 
environmental protection incurred in connection with any surface coal 
mining operation.''
    This list of eligibility criteria does not include all of the 
criteria of the corresponding Federal regulation at 30 CFR 773.15(b)(1) 
(as published October 28, 1994, 59 FR 54306), which is referenced in 30 
CFR 874.16 and 875.20. The Federal regulation at 30 CFR 773.15(b)(1) 
includes, in addition to the criteria included in North Dakota's 
proposed statute, violations ``of the Act [(SMCRA)], any Federal rule 
or regulation promulgated pursuant thereto, [and of] a State program.'' 
Although North Dakota includes cessation orders in its list, it does 
not include Federal and State notices of violations and any other 
``written notification from a governmental entity, whether by letter, 
memorandum, judicial or administrative pleading, or other written 
communication, of a violation of the Act; any Federal rule or 
regulation promulgated pursuant thereto; [or a] State program,'' which 
are included in the definition of ``violation notice'' at 30 CFR 773.5.
    North Dakota's statute does not include the ownership and control 
provisions of the Federal regulations. 30 CFR 874.16 and 875.20, 
through their referencing of 30 CFR 773.15(b)(1), require that a 
contract may not be awarded to a successful bidder until the regulatory 
authority determines that any surface coal mining and reclamation 
operation owned by the bidder or by any person who owns or controls the 
bidder is not in violation of the laws, rules, and regulations 
addressed in the preceding paragraph.
    Finally, North Dakota indicated at proposed NDCC 38-14.2-03(14) 
that ``[e]very successful bidder for an AML contract must be eligible 
based on `available information','' but the proposed statute does not 
indicate where it will obtain this ``available information.'' The 
Federal regulations at 30 CFR 874.16 and 875.20 require that ``[b]idder 
eligibility must be confirmed by OSM's automated Applicant/Violator 
System for each contract to be awarded.''
    In one other respect, proposed NDCC 38-14.2-03(14) differs from the 
requirements of 30 CFR 874.16 and 875.20. In the proposed statute, 
North Dakota did not include counterpart provisions to the Federal 
requirements regarding presumption of abatement of notices of 
violation. 30 CFR 874.16 and 875.20, through their referencing of 30 
CFR 773.15(b)(1), set forth the circumstances under which the 
regulatory authority may presume that a notice of violation is being 
abated. If these circumstances exist, the regulatory authority would 
not withhold the awarding of the contract until the violation was 
actually abated. The language proposed at NDCC 38-14.2-03(14) does not 
make it inconsistent with 30 CFR 874.16 and 875.20, but it does make it 
more stringent than these Federal regulations.
    In response to OSM's December 7, 1995, issue letter (administrative 
record No. ND-X-04) concerning these identified deficiencies, North 
Dakota proposed additional explanatory information for NDCC 38-14.2-
03(14) in the form of a policy document dated April 30, 1996, that 
provides guidelines to govern the selection of successful bidders for 
AMLR contracts. Specifically, the North Dakota PSC proposed to add a 
policy statement that requires a background search of successful 
bidders for AMLR contracts, provides the criteria to be used in 
determining the eligibility of the successful bidder under 30 CFR 
773.15(b)(1) at the time of contract award, limits the award of the 
AMLR contract to a successful bidder who meets the criteria used to 
determine eligibility, and provides that the eligibility determination 
will be made through OSM's Applicant/Violator System for each AMLR 
contract to be awarded. This policy document requires that the 
successful bidder for an AML contract meet all the requirements of the 
Federal regulations at 30 CFR 874.16 and 875.20. In addition, the 
policy document provides that in the event that circumstances exist 
whereby the regulatory authority presumes that a notice of violation is 
being abated, the regulatory authority will not withhold award of the 
contract until the violation is actually abated. This is consistent 
with the presumption of abatement provisions of the Federal 
regulations.
    Therefore, based upon the April 30, 1996, policy document submitted 
by North Dakota, which requires that the successful bidder for AML 
contracts must meet the eligibility criteria as provided by the Federal 
regulations at 30 CFR 874.16 and 875.20, the Director finds that NDCC 
38-14.2-03(14), when used in conjunction with this policy document, is 
in compliance with 30 CFR 874.16 and 875.20. The Director approves the 
addition of the statute and supporting policy document to the North 
Dakota plan.

3. North Dakota PSC Procurement Procedures and Contract Procedures

    North Dakota proposed revisions to various parts of the North 
Dakota PSC Procurement Procedures, including (1) section II, 
definitions and miscellaneous policy provisions, at subsection E, 
contract execution; subsection H, contractor selection; subsection I, 
final report; subsection K, preference; and subsection M, procurement 
officer; (2) section III, Public Service Commission and public 
contractor code of conduct,

[[Page 52693]]

at subsection B, gifts; and (3) section IV, procurement procedural 
requirements, at subsection B, procurement procedure; subsection C, 
method of procurement; and subsection D, unsolicited proposal. North 
Dakota also proposed to add appendices to this document at: A, 
evaluation criteria for request for proposals/competitive negotiations; 
B, sample scoring system for competitive negotiation type contracts; C, 
procedures for competitive contract negotiations; D, procedures for 
sole source procurement; and E, checklist for work statement (specific 
provisions) contracts and requests for proposals.
    In addition, North Dakota proposed revisions in various parts of 
the North Dakota PSC Contract Procedures, including (1) section II, 
checklist for negotiating contracts, and (2) section III, standard 
contract provisions, at subsection B, construction contracts. North 
Dakota also proposed to add appendices to this document at: A, sample 
close-out letter to contractor; B, sample contract transmittal letter; 
C, sample detailed budget sheet for cost reimbursable contracts; D, 
checklist for negotiating contracts; E, Public Service Commission 
contract numbering system; F, conflict of interest disclaimer; G, 
checklist for work statement (specific provisions) contracts and 
request for proposals; and H, certification of payment to employees, 
suppliers, and subcontractors.
    The Federal regulations at 30 CFR 884.14(a)(3) require, for State 
reclamation plan approval, that the State must have the policies 
necessary to carry out the State's AML plan. 30 CFR 884.13(d)(3) 
requires that the State reclamation plan must contain a description of 
the purchasing and procurement systems used by the designated State 
agency and that such systems must meet the requirements of the Office 
of Management and Budget Circular A-102, Attachment O (commonly 
referred to as the ``Grants Common Rule''). This circular is 
implemented in accordance with the Federal regulations at 43 CFR Part 
12. 43 CFR 12.76(a), which pertains to States, provides that a State 
will, when procuring property and services under a grant, follow the 
same policies and procedures it uses for procurements from its non-
Federal funds and that the State will ensure that every purchase order 
or other contract includes any clauses required by Federal statutes and 
executive orders and their implementing regulations.
    The proposed revisions to the North Dakota procurement procedures 
and contract procedures are consistent with the Federal regulations at 
30 CFR 884.13 (d)(3) and 43 CFR 12.76(a). Therefore, the Director finds 
that North Dakota's proposed revisions to the North Dakota PSC 
Procurement Procedures and Contract Procedures are in compliance with 
the requirements of the Federal regulations. The Director approves the 
proposed revisions.

4. North Dakota PSC Contract Policy 2-02-81(5) and Procurement Policy 
2-01-81(5)

    The North Dakota plan contains a document titled ``North Dakota 
Public Service Commission Contract and Procurement Policy,'' which 
consists of two instruments, both dated January 12, 1981: Procurement 
Policy 2-01-81(5), which was adopted on January 12, 1981, and revised 
on September 6, 1995; and Contract Policy 2-02-81(5), which was adopted 
on January 12, 1981, and revised on September 6, 1995. However, North 
Dakota neither showed nor described the changes it made to either 
existing policy.
    The Federal regulation at 30 CFR 884.15(a) requires the Director to 
follow the procedures set out in 30 CFR 884.14 in approving or 
disapproving an amendment or revision of a State reclamation plan. 30 
CFR 884.14(a)(3) requires that the State must have the policies 
necessary to carry out the State's AML plan. The contract and 
procurement policy included by North Dakota in this amendment is 
consistent with the requirement of the Federal regulations that the 
State reclamation plan include the policies necessary to carry out the 
plan. Therefore, the Director finds that the document titled ``North 
Dakota Public Service Commission Contract and Procurement Policy'' is 
in compliance with the Federal regulations at 30 CFR 884.14(a)(3). The 
Director approves this document.

5. Agency Organization

    North Dakota submitted a revised organizational chart for the 
State's Public Service Commission. The chart indicates that 5.3 
employees are devoted to Abandoned Mine Lands Division. OSM has 
confirmed that North Dakota intended to indicate that the staffing 
level is 5.8 employees. OSM has approved grants for a 5.8 employee 
staffing level.
    The Federal regulation at 30 CFR 884.15(a) requires the Director to 
follow the procedures set out in 30 CFR 884.14 in approving or 
disapproving an amendment or revision of a State reclamation plan. 30 
CFR 884.14(d) and (d)(1) require that the State reclamation plan must 
include a description of the administrative and management structure 
necessary to carry out the proposed plan, including the organization of 
the designated State agency authorized by the Governor of the State to 
administer this program and its relationship to other State 
organizations or officials that will participate in or augment the 
agency's reclamation capacity. Inherent within the ``administrative 
structure'' is the staffing level to carry out the plan.
    The Director finds that 5.8 employees is an appropriate staffing 
level for carrying out the North Dakota plan and approves this level of 
staffing within the North Dakota PSC for administering the North Dakota 
plan.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the North Dakota plan 
(administrative record Nos. ND-X-07 and ND-X-13).
    U.S. Department of Agriculture Natural Resources Conservation 
Service (NRCS).--NRCS responded on April 30 and May 30, 1996, that it 
had no comments on the proposed program amendment (administrative 
record Nos. ND-X-08 and ND-X-16).
    U.S. Department of Interior Fish and Wildlife Service (FWS).--FWS 
responded on May 3 and June 4, 1996, that it did not anticipate any 
significant impacts to fish and wildlife resources as a result of the 
proposed amendment and that it had no additional comments 
(administrative record Nos. ND-X-11 and ND-X-15).
    U.S. Environmental Protection Agency (EPA).--EPA responded on May 6 
and 31, 1996, that it had no comments on the amendment and that it 
concurred with the proposed revisions (administrative record Nos. ND-X-
10 and ND-X-14).
    U.S. Army Corps of Engineers.--The Army Corps of Engineers 
responded on May 9, 1996, that it found the changes proposed in the 
North Dakota plan to be satisfactory (administrative record No. ND-X-
12). The Corps commented that it had noted a minor numbering error in

[[Page 52694]]

section IV of part I.C., North Dakota Public Service Commission 
Procurement Procedures, where a new paragraph (C.4.b.3) had been added 
and the subsequent paragraphs were not renumbered. OSM has passed the 
Army Corps of Engineer's comment on to the North Dakota Public Service 
Commission. It is left to the State to determine whether it will make 
this editorial change.
    The Army Corps of Engineers also responded on June 7, 1996, that it 
found North Dakota's April 30, 1996, response to OSM's issue letter to 
be satisfactory (administrative record No. ND-X-17).

V. Director's Decision

    Based on the above findings, the Director approves North Dakota's 
proposed plan amendment as submitted on September 20, 1995, and as 
supplemented with additional explanatory information on April 30, 1996.
    The Director approves, as discussed in: finding No. 1 North Dakota 
Public Service Commission Procurement Procedures and Contract 
Procedures, concerning the title and table of contents; finding No. 2, 
NDCC 38-14.2-03(14), concerning bidder eligibility for abandoned mine 
land contracts; finding No. 3, North Dakota Public Service Commission 
Procurement Procedures and Contract Procedures, concerning the 
purchasing and procurement systems used by the North Dakota Public 
Service Commission in administering the State reclamation program; 
finding No. 4, North Dakota Public Service Commission Contract and 
Procurement Policy, concerning Contract Policy 2-02-81(5) and 
Procurement Policy 2-01-81(5), which are necessary to carry out the 
State reclamation plan; and finding No. 5, North Dakota Public Service 
Commission Organizational Chart dated September 1, 1995, which shows 
the number of employees needed to administer the State reclamation 
plan.
    The Director approves the statute and plan provisions as proposed 
by North Dakota with the provision that they be fully promulgated in 
identical form to the statute and plan provisions submitted to and 
reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 934, codifying decisions 
concerning the North Dakota plan, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State plan amendment process and to encourage States to 
bring their plans into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards required by 
SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of Tribe or State AMLR plans and 
revisions thereof since each such plan is drafted and promulgated by a 
specific Tribe or State, not by OSM. Decisions on proposed Tribe or 
State AMLR plans and revisions thereof submitted by a Tribe or State 
are based on a determination of whether the submittal meets the 
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the 
applicable Federal regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
agency decisions on proposed Tribe or State AMLR plans and revisions 
thereof are categorically excluded from compliance with the National 
Environmental Policy Act (42 U.S.C. 4332) by the Manual of the 
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The Tribe or State submittal which is the subject of this rule is based 
upon Federal regulations for which an economic analysis was prepared 
and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
established by SMCRA or previously promulgated by OSM will be 
implemented by the Tribe or State. In making the determination as to 
whether this rule would have a significant economic impact, the 
Department relied upon the data and assumptions in the analyses for the 
corresponding Federal regulations.

6. Unfunded Mandates Reform Act

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or private sector.

List of Subjects in 30 CFR Part 934

    Abandoned mine reclamation programs, Intergovernmental relations, 
Surface mining, Underground mining.

    Dated: September 10, 1996.
Peter A. Rutledge,
Acting Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 934--NORTH DAKOTA

    1. The authority citation for part 934 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 934.25 is amended by adding paragraph (e) to read as 
follows:


Sec. 934.25   Approval of abandoned mine land reclamation plan 
amendments.

 * * * * *
    (e) The revisions to and the addition of the following statute and 
plan provisions, as submitted to OSM on September 20, 1995, and as 
supplemented with explanatory information on April 30, 1996, are 
approved effective October 8, 1996: North Dakota Century Code (NDCC) 
39-14.2-03(14), bidder eligibility for abandoned mine land contracts; 
North Dakota Public Service Commission (PSC) Procurement Procedures and 
Contract Procedures, both revised August 1995; North Dakota PSC 
Contract Policy 2-02-81(5) and Procurement Policy 2-01-81(5), both 
revised on September 6, 1995; and North Dakota PSC organizational chart 
dated September 1, 1995.

[FR Doc. 96-25722 Filed 10-7-96; 8:45 am]
BILLING CODE 4310-05-M